Judge orders refund of San Clemente beach parking fees

Judge Thierry Patrick Colaw ordered the city Thursday to issue refunds to homeowners who paid into the fund in the past 25 years.

The ruling grants a writ of mandate to petitioners in a lawsuit that challenged the fund’s validity and said the city’s handling of it did not comply with California’s Mitigation Fee Act. A writ of mandate orders a government agency to follow the law by correcting previous actions.

Colaw said the city won’t have to refund money already spent toward beach parking, but the rest of the fund must go back to homeowners.

Payments into the fund were in the form of an “impact” fee the city charged when issuing a building permit for a new home. It was intended to help the city meet beach-parking needs caused by rising population in parts of San Clemente outside the coastal zone.

In his ruling, Colaw said a required five-year progress report issued by the city in 2009 declared the city had collected sufficient funds for needed parking improvements. The city then had 180 days to identify when it would start the improvements or it would have to refund the money, the judge wrote.

“The city did not, and still has not, determined when construction will begin on any beach parking project,” Colaw wrote. “As a result, the money must be refunded.”

Brad Malamud, a San Clemente resident who brought the lawsuit with fellow property owners Daniel Walker and Justin McCarthy, said the ruling didn’t grant all he had hoped for, such as a refund of money the city spent to acquire a North Beach lot. On balance, however, he called it a victory.

“We won what we asked, to get the money back,” he said.

City Attorney Jeff Goldfarb said he was stunned by the ruling and will ask the City Council to consider options. The city had argued that even if the judge found fault with the city’s compliance with the Mitigation Fee Act, the proper remedy is to make the city go back and do it right, not forfeit the funds.

“Instead of offering the city an opportunity to do (what was required), which the city was already in the process of doing, the court has awarded … all the city’s beach parking funds, to the great detriment of the community.”

Malamud said he hopes the City Council will agree to a speedy refund at minimal cost. He acknowledged the city could appeal the ruling, just as the petitioners could appeal portions that didn’t go their way.

Malamud estimated that the owners of close to 6,500 homes will have refunds coming. The city has records to figure out which owners paid the fee, he said, and his group has created a spreadsheet calculating fees, interest earned and how much each person should get.

The judge ruled the petitioners could not challenge the city’s previous use of the fund to acquire land at 1832 N. El Camino Real, where the city plans to build a 33-space beach parking lot.

Still, Malamud says that if the city wants to build that lot, the estimated $740,000 cost can’t come from the impact fee. He feels the lot is unneeded and unjustified by rules governing the beach-parking fee and that the city has sufficient funds collected from the Talega development for North Beach improvements.